* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 09.02.2011
+ R.S.A.No.78/2010
STATE BANK OF PATIALA ...........Appellant
Through: Mr. Narender Pal, Advocate.
Versus
S.K. MATHUR ..........Respondent
Through: Nemo
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
This appeal has impugned the judgment and decree dated
08.12.2009 which has endorsed the findings of the trial Judge
dated 08.05.2009 wherein the suit filed by the plaintiff i.e State
Bank of Patiala seeking recovery against two defendants had been
dismissed.
2 The short dispute is as follows:-
The plaintiff had filed a recovery suit of Rs.1,56,872.40 paise
against two defendants of whom defendant No. 1 was the principal
debtor and defendant No. 2 was the guarantor. This was a
composite suit which had been filed by the plaintiff against both
the defendants. In the course of proceedings, it was brought to
notice that defendant No. 1 had expired on 18.10.2005; on
08.02.2007 orders were passed that the suit filed by the plaintiff
stands abated qua defendant No. 1. A perusal of the order dated
08.02.2007 shows that this order was passed on the statement
made by counsel for defendant No. 2.
RSA No.78/2010 Page 1 of 4
3 The question which arose for decision was as to whether the
suit has abated as a whole i.e. against defendant No. 2 as well.
4 Section 134 of the Indian Contract Act, 1872 (hereinafter
referred to as the „said Act‟) reads as follows:-
“134. Discharge of surety by release or discharge of principal
debtor.- The surety is discharged by any contract between the
creditor and the principal debtor, by which the principal debtor is
released or by any act or omission of the creditor, the legal
consequence of which is the discharge of the principal debtor.”
4 Trial Judge had relied upon the aforenoted statutory
provision to draw a conclusion that the suit stands abated as a
whole.
5 This finding was endorsed in appeal. 6 Learned counsel for the appellant has urged that under
Section 128 of the said Act, the liability of principal debtor and
guarantor is coextensive and even assuming that suit filed by the
plaintiff against defendant No. 1 stands abated, the plaintiff has
every right to pursue his suit against defendant No. 2; it was an
independent right; the guarantor could not be discharged. It is
pointed out that this is also evident from the contract between the
parties. Counsel for the appellant has placed reliance upon (1978)
48 Comp Cas 459 Prestige Finance P Ltd. (In liquidation) Vs.
Balwant Singh & Anr and AIR 2004 SC 3942 Shahazada Bi and
others Vs. Halimabi to support this submission.
7 Both these judgments are inapplicable to this factual
scenario. In the case of Prestige Finance a claim petition has been
filed by the Official Liquidator under Section 446 of the Companies
Act, 1956 and on summons being issued, it was noted that Krishan
Lal had expired; an application under Order 22 Rule 4 of the Code
RSA No.78/2010 Page 2 of 4
of Civil Procedure (hereinafter referred to as the „Code‟) had been
preferred by the Official Liquidator; the Court held that the
original application had been filed against a dead person;
proceedings could not be declared null and void; legal
representative could be brought on record under Order 1 Rule 10
of the Code; provisions of Order 22 Rule 4 of the Code would have
no application ; the ratio of the said judgment is inapplicable. The
second judgment relied upon by learned counsel for the appellant
in Shahazada Bi is also distinct on facts. This was a case where a
suit for recovery of possession had been filed against tenants in
common; each defendant was in separate independent possession
of each room; the relief claimed against each of the defendants was
divisible and since claim was against each individual defendant, it
was held that the death of one defendant would not lead to
abatement of the entire suit.
8 The instant is not one such case. Admittedly in this case, a
joint claim had been preferred against the two defendants of whom
one having died, the suit proceedings stood abated qua him on
08.02.2007. Since the suit proceedings had abated against the
principal debtor, the question of continuance of the suit against the
guarantor would not arise. Claim against the guarantor was not
divisible; it was not an independent claim. Section 134 of the
Indian Contract Act was applicable; surety stood discharged.
9 In AIR 1996 SC 1427 Sri Chand Vs. M/s Jagdish Pershad
Kishan Chand, the Apex Court had held that no exhaustive
statement can be made as to when and under what circumstances
the appeal will abate as a whole or it would proceed.
The three tests laid down by the Court to determine this read
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as follows:-
“The courts will not proceed with an appeal (a) when the
success of the appeal may lead to the court’s coming to a decision
which may be in conflict with the decision between the appellant
and the deceased respondent and, therefore, it would lead to the
court’s passing a decree which will be contradictory to the decree
which had become final with respect to the same subject matter
between the appellant and the deceased respondent; (b) when the
appellant could not have brought the action for the necessary relief
against those respondents alone who are still before the court and
(c) when the decree against the surviving respondents, if the
appeal succeeds, be ineffective that is to say it could not be
successfully executed. These three tests, as pointed out by this
Court in Sri Chand v. M/s. Jagdish Pershad Kishan Chand
MANU/SC/0008/1966 are not cumulative tests. Even if one of them
is satisfied, the court may dismiss the appeal.”
10 Applying the first test, it is clear that once the suit had
abated against defendant No. 1, the result would be that the suit is
dismissed qua him; if the claim is decreed against defendant No. 2
it would be a conflict between the decree of dismissal passed
against defendant No. 1 and, therefore, it would lead to the court
passing a decree which has even otherwise become final with
respect to the same subject matter between the appellant and the
deceased defendant no.1.
11 The substantial questions of law have been phrased on page
7 of memo of appeal. No such substantial question of law having
arisen.
Appeal is dismissed in limine.
INDERMEET KAUR, J.
FEBRUARY 09, 2011
A
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